DHARSHAN WEERASEKERA

The resolution converting Parliament to a ‘Constitutional Assembly’ was adopted unanimously on March 9^th.  With it, in my opinion, the Joint Opposition lost legitimacy as an entity capable of representing Sinhala Buddhist interests.  It is said that all things happen for a reason, and perhaps what has happened is for the best.

The Sinhala Buddhists must realize that they are on their own.  They cannot rely on coalitions of various political parties to protect their interests:  they must build a Movement and a political party for themselves, based on a core set of principles reflective of their identity, and their particular social and political aspirations.

As the Movement gains strength, big-name politicians will of course join it, but the point is that the Movement has to be independent of those politicians in the sense that the long-term interests of the Sinhala Buddhists are not hurt if any of the said politicians leave, are imprisoned, or betray the ‘cause’.

In this article (which will be my last on this subject because it is too depressing) I shall briefly repeat what I think is wrong about what happened on the 9^th, discuss the type of Constitution that is going to be imposed on us, and what I think will happen afterwards.

a) THE TRAGEDY OF THE 9TH

What is wrong with what happened on the 9^th can be summarized as follows.  In the Parliamentary elections of August 2015, the Sinhala Buddhists voted overwhelmingly for the UPFA thinking that under that party their interests will be safe.

Nowhere in the UPFA manifesto was there a hint that if UPFA candidates failed to win a majority of seats in Parliament, they reserved a right to join their rivals in the UNP and form a Government.  But, that’s exactly what happened.  Thus, the franchise of a majority of persons who voted for the UPFA, who as I said were overwhelmingly Sinhala Buddhist, was blatantly abrogated.

A Parliament consisting of a significant number of MP’s who have betrayed the trust placed in them by their voters does not have the moral authority to contemplate bringing even amendments to the existing Constitutions let alone frame a new Constitution.  A Constitution is the Supreme Law of the Land, and as such the law to which the aforesaid voters who were betrayed will be ultimately subject.

It might be argued that the voters who were betrayed will get their chance when the new Constitution is submitted to a referendum.  That argument is valid only if we suppose the referendum is going to be genuine.  I think most Sinhala Buddhists now realize that the referendum, if and when it is held, will be rigged.  So, they’re finished.

Under the circumstances, the Joint Opposition had a duty to stall the vote until the Sinhala Buddhists could organize.  At the very minimum, the Joint Opposition should have placed on record the injustice done to the Sinhala Buddhists at the August 2015 elections.  But, they voted without a whimper of protest.  So, that’s that.

b) THE TYPE OF CONSTITUTION THAT WILL BE FOISTED ON THE SINHALAS

It is suggested that the new Constitution will follow the Austrian model.  I’ve even heard the Icelandic Constitution being suggested as a model.  The Prime Minister, if I’m not mistaken, has shown a fondness for the Litchavi Constitution of Buddhist lore.  Some people say it’ll be the Indian model that is finally adopted.  In my view, all this is nonsense.

It is not in dispute that the country is now being run according to the wishes and needs of the U.S., U.K. and India.  Of those three, the U.S. is in charge, because the Americans don’t like to play second fiddle to anyone, and indeed don’t have to.  So, when it comes to a new Constitution, the Government will do what the U.S. tells it to do.

I think most people will agree that, generally speaking, the U.S. (and its two partners) want to achieve two goals with the new Sri Lanka Constitution:  one, to allow maximum infiltration and exploitation of the country by foreign elements including ‘investors’; and two, set the ground-work for a division of the country by giving Tamils control over the North and East.

If we start with the premise that the specifics of the Constitution will follow what the U.S. more or less dictates, the question is, ‘What is the model the U.S. will want to impose on Sri Lanka in order to achieve the two goals mentioned earlier?’  In my view, the Americans have a range of what I like to call ‘Slave Constitutions’ from which to choose—Constitutions which the Americans have in one way or another helped draft.

By ‘Slave Constitution’ what I mean is a Constitution designed to enslave a nation and subjugate it permanently to U.S. interests, while maintaining the façade that the locals actually have some control over their destiny.  The latest and most advanced version of such a Constitution is the Iraqi Constitution, and in my view this is what will be foisted on Sri Lanka also.

I recall that the original version of the 19^th Amendment, before some of its egregious clauses were removed, contained key features of the Iraqi Constitution.  (See, my article, ‘Does the 19^th Amendment make the SL Constitution remarkably similar to the Iraq Constitution?’ lankaweb.com, 31-3-2015).  If I’m not mistaken, some of the same worthies who drafted the 19^th Amendment are in charge of drafting the new Constitution.

I shall briefly discuss four main features of the Iraqi Constitution, and then describe the extensions of those features that I think will appear in the new Sri Lanka Constitution.

First, The Iraqi Constitution sets up a Federal System, and explicitly recognizes Kurdistan as an autonomous region entitled to have its own Constitution, subject to some of the overall powers of the Federal Constitution.  I think this particular feature will be replicated in the new Sri Lanka Constitution, in this case with the Tamils being given control over the North and East.

Second, there is a President under the Iraqi Constitution, but he’s just a figurehead.  For instance, he is supposed to be a ‘symbol of national unity’ and so on, but doesn’t have any power to enforce anything.  I predict the new Sri Lanka Constitution will create a President that is almost a word-for-word replication of the Iraqi model.

I shall now move to the most important component of the Iraqi Constitution, namely, the Council of Ministers (equivalent to a Cabinet) headed by the Prime Minister.  This is the unit with real power in the country.  It is worthwhile delving into this unit in a little more detail.

Under the Iraqi Constitution, the Prime Minster and the Cabinet of Ministers, among other things, plan and execute the general policies of the State, including overseeing all ministries, propose Bills, propose the general budget, recommend appointments to the highest offices of the State, and negotiate treaties.

The Prime Minister is the nominee of the largest bloc in the Council of Representatives (i.e. the Iraqi Parliament) which means that he commands the support of the majority in Parliament.  So, there’s really no question of the Bills proposed by the Council of Ministers being rejected when they get to the Council of Representatives.

In other words, under the Iraqi Constitution, the Executive Branch and the Legislative Branch are seamlessly blended:  the Executive generates the policies of State and proposes the laws to carry out those policies, and the legislature dutifully passes those laws.  If there’s any dissent it is only for cosmetic purposes:  it doesn’t have any real impact on the final outcome.

At the very start of the Iraqi Constitution one finds a statement to the effect that the Constitution shall be guided by the principle of separation of powers.  But in reality there is no such separation:  the PM and the Council of Ministers have carte blanche to do more or less whatever they want.

The only drawback for the PM is that he can lose his job if he loses the support of the majority bloc in Council of Representatives.  That means he can be replaced at the whim of the Council of Representatives (or of any foreign power with enough leverage over members of the Council to get them to withdraw their support for the PM) without having to go for fresh elections.

(It should be noted that the above is how the Americans saw to it that former Iraqi PM Nouri Al Maliki was replaced by the present chap, when it was felt that Maliki was too close to the Iranians.)

In short, the Iraqi system is designed to allow maximum control of the country by a small group of people (Council of Ministers) who are in turn under the thumb of the Prime Minster.  The PM, in turn, is under the control of any foreign power with the means and the resources to manipulate the majority bloc in the Council of Representatives.  To make a long story short, I predict the Americans will ensure that this system is replicated in its entirety in the new Sri Lanka Constitution.

I shall finally turn to the judiciary.  The Iraqi Constitution creates a Supreme Court, which is to say the Iraqi Supreme Court is anchored in the Constitution itself.  This is one of the few good features of that Constitution.  Precisely because this feature is good (i.e. ordinary citizens might have at least a remote chance of challenging legislation that encroaches on their rights) it will not be included in the new Sri Lanka Constitution.

Instead, the present arrangement, where the judicial power of the people is reposed in Parliament, will continue, along with the provisions of Article 80(3) which will preclude challenges to legislation after such legislation is enacted.  That means members of the public will have just one week to challenge a proposed Bill after it is placed on the order Paper of Parliament, and after that it’s all over.

Along with the aforesaid elements, I also predict that a ‘Constitutional Court’ will be introduced with exclusive jurisdiction to adjudicate on Constitutional issues.  This will be hailed as a brilliant innovation by the academics and assorted ‘intellectuals’ who will be trotted out at the right time to endorse the new Constitution, but will in truth deal a death-blow to even the limited vibrancy of Constitutional jurisprudence in this country at present (the result of the limitation placed by Article 80(3) mentioned above).

The advantage to the Government of a ‘Constitutional Court’ is that once a group of political appointees are put into it (or it is packed with Tamils and Muslims under the bogus claim of increasing minority ‘representation’) the Government can ensure that the interpretations it wants are always forthcoming.

So, for instance, suppose the Government wants to start a Hybrid or a Special Court to try our soldiers for war crimes.  A member of the public or even one of the soldiers concerned challenges the proposal, and asks the Constitutional Court for a ruling on whether the proposed court is compatible with the Constitution:  Presto will come the answer:  ‘Of course it is compatible!’  It’ll be the same with questions over federalism.

To sum up, then, the aforesaid farce, masquerading as a ‘Constitution,’ is what is going to be foisted on the Sinhalas.

WHAT WILL HAPPEN AFTERWARDS?

Given what I have described above as the disaster that is about to come down on the heads of the Sinhalas, it is natural if they were to think along the following lines: ‘All we have to do is hang in there for four more years, when the elections come around, defeat this bunch of rascals ruining the country at present, throw their sorry excuse for a ‘Constitution’ in the trash, form a Government of our own people, enact a genuine Constitution, tell the minorities ‘its our way or the highway,’ and go from there.’

In my view, the above is where the Sinhalas are wrong:  there will be no elections.  The Government will pull a ‘’82 (i.e. extend its term by way of a referendum) or in some other way postpone elections.  I believe this will happen primarily for the following reason.

It appears that the Americans have made a policy decision that Sri Lanka is strategically important for them.  This is different from the situation from even a few years ago.  For instance, in 2007, then U.S. Ambassador to Sri Lanka Mr. Jeffery Lundstead is on record as saying:  ‘The U.S. has no significant strategic interests in Sri Lanka.’[1]

In contrast, the following is the assessment of Sri Lanka by a high-ranking U.S. Official—in this case the U.S. Navy Commander, and head of U.S. Pacific Command—in a report submitted to the House Armed Services Committee in February 2016:

‘President Sirisena, elected in January, is serious about addressing Sri Lanka’s human rights issues.  We have an opportunity to expand U.S. interests with Sri Lanka—Asia’s oldest democracy, and will proceed deliberately as progress is made.  Given Sri Lanka’s strategic location, it is in America’s interest to increase military collaboration and cooperation.’[2]

To repeat, the present reality is that the Americans have made a policy decision that Sri Lanka is important to their strategic interests.  My point is this.  Once Americans decide that a particular country is strategically important, they will do everything in their power to bring that country under their control, and to maintain that control over the long haul.[3]

To turn to Sri Lanka, the Americans are not idiots:  they won’t go to the trouble of imposing a new Constitution on the country (one that gives them everything they want) only to see it thrown into the trash-bin in four years.  So, they will order their local puppets to postpone elections, and the latter will have no choice but to comply.

What will happen once the elections are postponed?  Only one thing can happen: a general uprising of the Sinhalas.  In my view, this is exactly what the Americans want because it will give them the chance to order the local puppets to carry out a promiscuous slaughter.  (I presume that in four years the Army, which has traditionally been an institution of national defence, will have been ‘reformed’ enough to be unleashed on the local population)

In short, the Americans will use the uprising as an excuse to break the back of the Sinhalas one and for all, so that the Sinhalas will never again pose a significant threat to their (i.e. the Americans’) plans for the island.  The bad news is that the Americans are masters at this particular tactic.  Their list of successes is as impressive as it is harrowing:  the crushing of the Filipino resistance following the Spanish-American war, (conservative estimate of the native casualties:  220,000)[4];

The ‘counter insurgency’ in Indonesia which brought Suharto to power after the extermination of the Communists in that country (conservative estimate of casualties:  500,000)[5]; East Timor (American assisted invasion and occupation of East Timor by Indonesia, estimate of native casualties, 200,000)[6]; Invasion and occupation of Iraq (conservative estimate of local casualties:  500,000)[7].  And the list goes on.

To make a long story short, in my view, something like the above will happen in Sri Lanka also.  A critic might say, But will Sri Lankan ‘leaders,’ rascals though they may be, actually allow something like the above?  Most of these ‘leaders’ are from the Sinhala Heartland, or have connections to it.  Is it reasonable to suppose that they will unleash wholesale violence on their own people?’ In my view they will, for two reasons.

One, once the violence starts, it will gain a momentum of its own because the ‘leaders’ will be fearful that if the Sinhala Buddhists ever gain the upper hand, they will put their tormentors (i.e. the said ‘leaders’) before firing squads.  So the only way to avoid that fate is to win at any cost, which means to keep on killing.

The other reason is what appears to be an endemic element of the psychology of violence, particularly of mass killing:  when one starts down that path, it is easier to advance, rather than to cease and return.  We are reminded of Macbeth’s words:

I am in blood

Stept in so far that,

Should I wade no more,

Returning were as tedious as go o’er

Such then is my grim forecast.  I sincerely hope none of this will come to pass, but if it does, the Joint Opposition should know that its servile act on the 9^th March is what helped set it all up.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and, The UN’s Subversion of International Law:  The Sri Lanka Story (2015) 

[1]‘U.S. Aid to Sri Lanka declined since 2005, now halted,’ Asian Tribune, 24 July 2011

[2] Statement of Admiral Harry B. Harris Jr., U. S. Navy Commander, U.S. Pacific Command, on U.S. Pacific Command posture, 24 February 2016, www.docs.gov. It should be noted that in the said report Sri Lanka is classified as a ‘Partner’ of the U.S., to my knowledge the first time that has been done by US pacific Command.

[3] It appears that elements of the apparatus to maintain control over Sri Lanka has already been put in place, with for instance the launching of the ‘US-Sri Lanka Partnership Dialogue’ an annual powwow for key foreign ministry officals and their Washington counterparts.  (The relevant question is, ‘Partnership’ for what?)  In my view, forums such as this are ideal settings for the Americans to convey the necessary instructions to the Sri Lankans.  According to the newspapers, the inaugural session of this ‘Dialogue’ was held on February 26, 2010.  See, ‘US to support Lanka’s Constitutional Reforms,’ Daily Mirror, 2 March 2016.  Coincidentally, the Government, within less than two weeks of the said ‘Dialogue,’ rushed to initiate the vote on the ‘Constitutional Assembly’, for instance by agreeing to the amendments suggested to the related resolution by the Joint Opposition and Sirisena’s SLFP’ers, something that had been stalling the Constitution-making process since early January.

[4] www.en.wikipedia.org

[5] Noam Chomsky and Edward Herman, The Washington Connection and Third World Fascism, South End, Boston, 1979, p. 208

[6] See ‘East Timor:  Acceptable Slaughters,’ Joe Nunes, www.mega.nu

[7] See  ‘Half-million Iraqis died in the war-New Study says,’ Dan Vergano, www.nationalgeographic.com, 16 October 2013